GE Alfalfa At the Supreme Court: Analyzing Oral Arguments

On April 27, 2010, the Supreme Court heard oral arguments in the case of Monsanto Co. v. Geertson Seed Farms, et al. The case was appealed by Monsanto to the highest court after a California District Court issued, and an Appeals Court affirmed, a permanent injunction, banning the planting of genetically modified alfalfa (“GM Alfalfa” a.k.a. “Roundup Ready Alfalfa” or “RRA”) until the USDA’s Animal and Plant Inspection Services (“APHIS”) fully analyzed the impacts of these crops on the environment, farmers and the public in an Environmental Impact Statement (“EIS”). Roundup Ready Alfalfa is genetically engineered to be resistance to glyphosate, the active ingredient in Monsanto’s best selling herbicide, Roundup.

Background

NEPA requires a federal agency to prepare a detailed EIS for all major Federal actions significantly affecting the quality of the human environment. In this case, the federal agency action under scrutiny posed by the Geertson suit was the deregulation of RRA without conducting an EIS. In 2006, the District Court found that APHIS did violate NEPA by failing to conduct an EIS. Before the Court decided on a remedy, Monsanto and other parties argued against the issuance of a broad injunctive relief stating that many farmers have already purchased seeds after APHIS deregulated RRA and were planning to plant those seeds before March 30, 2007.

As a remedy, APHIS proposed that the District Court impose limitations on the further planting of RRA, but argued against enjoining all planting of RRA before an EIS could be prepared. Monsanto and other parties requested an evidentiary hearing to assess the viability of APHIS’s proposed limitations. In May 20007, the District Court rejected the request for an evidentiary hearing and permanently enjoined all future planting of RRA until APHIS conducted an EIS.

Monsanto appealed to the Ninth Circuit Court of Appeals, which affirmed the lower court’s decision. Thereafter, Monsanto appealed to the Supreme Court which, on January 15, 2010, agreed to hear the case.

Supreme Court Hears Oral Arguments

In most cases, when a court is deciding whether to issue an injunction, it evaluates, among other factors, whether the entity seeking the injunction will be irreparably harmed if the remedy sought was not ordered by the court. On appeal to the Supreme Court, Monsanto argued that the lower courts failed to apply the appropriate standard for issuing an injunction and that the courts mistakenly applied a special rule for injunctive relief to NEPA violation cases. In other words, Monsanto argued that the lower courts simply used a procedural violation of NEPA as a proxy for the finding that irreparable injury was likely to occur if they did not issue the injunction rather than, as Monsanto believes the lower courts should have done, make a separate, independent finding of likely irreparable harm in the absence of an injunction.

In the words of Monsanto’s lawyer, Gregory G. Garre, the lower courts “short-circuited the requisite inquiry into the likelihood of … irreparable harm.”

Defending its victory at the lower courts, Lawrence Robbins on behalf of the Geertson parties began by arguing on procedural grounds, namely that Monsanto lacks standing to bring the case to the Supreme Court. Specifically, Geertson argued that Monsanto lacks the capacity to now raise the issues before the Supreme Court for two reasons:

(1) Monsanto failed to address these issues both, at the Ninth Circuit Court of Appeals, and in questions Monsanto certified to the Supreme Court (reviewing courts generally address only those issues that are before them); and,

(2) even if the Supreme Court vacated or narrowed the lower court’s injunction, Monsanto, Robbins argued, would be in exactly the same position it is now. Stated differently, Robbins argued that Monsanto is appealing the appropriateness of the injunction only and not the finding of a NEPA violation itself. Since what the lower court found was that it was APHIS’ failure to conduct an EIS to assess the impact of RRA, i.e., the NEPA violation, that returned RRA to a regulated article status and banned further planting of RRA, any move by the Supreme Court now to modify or vacate the injunction would leave Monsanto in the exact same position it is in currently.

Despite its standing arguments, Robbins also addressed arguments raised by Monsanto. Robbins argued that the lower courts employed the appropriate standard in issuing the injunction, and that they did not carve out a special exception to the traditional test for injunctive relief in NEPA cases.

While lawyers for both sides were sharply questioned by the Justices, it appeared that the Geertson lawyer faced an uphill battle. Chief Justice Roberts, for example, asked Robbins, “[s]o if the injunction doesn’t do anything, why are you bothering to defend it?” And Justice Scalia, shining the spotlight on the direction of his decision, told the Geertson lawyer,

This isn’t contamination of the New York City water supply. It’s the creation of plants of — of genetically engineered alfalfa which spring up that otherwise wouldn’t exist. It doesn’t even destroy the current plantings of non-genetically engineered alfalfa. This is not the end of the world. It really isn’t.

The most it does is make it difficult for those farmers who want to cater to the European market, which will not accept genetically engineered alfalfa, it makes it more difficult for them to have a field of 100 percent non-genetically engineered. But that’s not the end of the world, Mr. Robbins.

Scalia also asked which of the individual farmers have fields that are within five miles of GE alfalfa and after a short exchange with Robbins, stated, “[t]he fact is[,] there isn’t a single named plaintiff who — who has — has any claim that within the utmost limits of — of risk, he is at risk currently.”

Robbins, shrewdly, tried to appeal to the business sense of the pro-business Justices. He argued, for example, that “what is at stake here is the choice to be in a line of business that farmers and businessmen across this country have chosen to be in. …. They have chosen organics or conventional farming that is GMO-free. They have chosen to sell natural beef. And they have chosen this in a rapidly growing large business with dollars — billions of dollars at stake.” He also tried to articulate the impact that RRA contamination of conventional or organic alfalfa will have an the international exporting business. Robbins argued,

…you mention, for example, Justice Scalia, the European market. That is just the tip of the iceberg. The Japanese will not take — which take, by the way, 75 percent of our alfalfa exports — will not, despite their formal government policy, will not take GMO products.

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this is going to shut down the — the export market. We know that the Japanese and the Koreans and Europeans won’t buy your products. We know this will hasten the consolidation of farming. We know it will hasten the demise — it will hasten the demise of organic farming, a rapidly developing business in this country.

Based on the tenor of oral arguments, it appears that arguments discussing the impact of RRA on the organic business, expert or consumer and farmer choice did not impress Scalia. While it is suspected that Roberts, Alito and Thomas will join Scalia in ruling in favor of Monsanto, it remains to be seen which way the remaining four Justices (Kennedy, Ginsburg, Sotomayor, and Stevens) will lean when the Supreme Court hands down its decision in June. Justice Breyer recused himself from the case because he is the brother of the District Court judge that issued the injunction.

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